The Dignity Jurisprudence of the Constitutional Court of South Africa: Cases and Materials, Volumes I & II

Carmichele

Carmichele v. Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening)  () SA  (CC) CASE SUMMARY Facts In April , Alix Carmichele (Carmichele) was assaulted by François Coetzee while staying at the house of a friend of hers in a secluded coastal village. Coetzee, who lived near Carmichele, already had convictions for housebreaking and indecent assault and, at the time of his attack on the applicant, was facing a charge of rape for which he had been released unconditionally. Both the investigating officer and the prosecutor in that case supported Coetzee’s release and did not inform the magistrate of Coetzee’s previous convictions. Carmichele’s friend, after finding out about Coetzee ’s release from custody pleaded with the investigating officer to keep Coetzee in custody pending his trial. She was referred to the state prosecutor who told her there was nothing that could be done unless Coetzee committed another offence. Soon thereafter Carmichele saw Coetzee snooping around the house where she was staying. Her friend again requested the prosecutor to take him into custody, but to no avail. Shortly afterwards Coetzee broke into the house and attacked Carmichele, breaking her arm and stabbing her in the chest. She sued the state in delict for the injuries suffered during the attack on the ground that the police and prosecutors had negligently failed to discharge the legal duty she claimed they owed her to prevent Coetzee causing her harm. Carmichele Legal History The Cape High Court granted the state absolution from the instance, finding that there was no chance a court could find in favor of the applicant. She appealed to the Supreme Court of Appeal but the appeal was dismissed for much the same reasons. She then appealed to the Constitutional Court. Originally, Carmichele had relied only on the law of delict, not the Constitution. However, when she appealed to the Constitutional Court, she argued that the law of delict should be developed in light of the spirit, purport and objects of the Bill of Rights—as required by section () of the Interim Constitution and section () of the Constitution—to found the legal duty on the state to protect her. Specifically, she argued that the police and the prosecutor had a duty to protect her rights to life, dignity, privacy, and freedom and security of the person. Issue Should the common law be developed in light of the Bill of Rights to impose a duty on the state to protect Carmichele’s constitutional rights? Decision of the Constitutional Court The court held that section () of the Constitution imposes a general, nondiscretionary obligation on courts to consider whether the common law is inconsistent with the Bill of Rights and, if it is, to develop that law to bring it in line with the Constitution (paragraphs –). In this case, the High Court and the SCA had failed to undertake this process and the Constitutional Court was disadvantaged by not having the views of the lower courts. The court emphasized that sexual violence was one of the worst assaults on a woman’s dignity (paragraph ). It held that the existing common-law test for determining whether there was a duty to act in delictual cases was inconsistent with the Constitution.The constitutional rights to life, human dignity, and freedom and security of the person impose a duty on the state to take positive steps to protect those rights. Exactly in what circumstances that duty would translate into private law liability was a different question. The judges held that they needed the input of the High Court and SCA to appropriately develop the common law in a way that took account of both the objective normative value system created by the Constitution and a thorough knowledge of the common law. Order The court upheld the appeal and referred the matter back to the High Court for determination. Resolution After further decisions by both the High Court (Carmichele v. Minister of Safety and Security and Another  () BCLR  (C);  () SA  (C)) and the SCA (Minister of Safety and Security v. Carmichele [] ZASCA ), Alix  Legal Cases (–) Carmichele eventually won her legal battle for compensation that had lasted more than a decade. Comment The violation of Carmichele’s dignity is undeniable. But does that violation necessarily imply that the state should be liable? The state has limited resources to fulfill all its constitutional obligations, from providing housing, healthcare, and...